This week, Judge Richard Leon of the D.C. District issued a preliminary injunction barring enforcement of key provisions of the new tobacco advertising regulations passed by Congress in 2009. In finding that there was a strong likelihood that the plaintiff tobacco companies would prevail on their claim that the requirements of the statute—particularly the mandate that cigarette packages contain large, graphic illustrations of the dangers of smoking—violated their First Amendment rights, the DC Circuit frustrated the objectives of Congress and set up a potential circuit split over the issue by conflicting with an earlier federal court ruling on nearly the same subject. Even if it was wrong on the merits, however, Judge Leon’s ruling reflects a legitimate doctrinal concern: even for a particularly disfavored type of commercial speech such as cigarette advertising, there are limits on the extent to which companies can be forced to serve as a conduit for government speech unrelated to the truth of their advertising and completely inimical to their own commercial interests.

Congress passed the Family Smoking Prevention and Tobacco Control Act by large margins in the spring of 2009, and President Obama signed it into law in June of the same year. A major early legislative achievement for the Obama administration, the bill represented a delayed response to the Supreme Court’s ruling in FDA v. Brown and Williamson (2000) that more stringent control of tobacco products by the FDA would require “tobacco-specific” Congressional legislation authorizing it. The 2009 Act placed additional geographic restrictions on tobacco marketing, prohibited the use in advertising of potentially misleading terms such as “light” or “low-tar” to describe cigarettes, and severely restricted tobacco companies’ use of graphics and illustrations in print advertisements which could be accessed by children. The most controversial provision, though—and the primary one at issue in Leon’s ruling—was the requirement that the top half of all cigarette packages be devoted to both a textual warning about smoking and a graphic illustration of smoking’s consequences. At the end of 2010, the FDA initiated notice-and-comment rulemaking on a proposed list of 36 “graphics.” The final FDA rule as promulgated this summer settled on a final group of nine illustrations; among them are a photo of a diseased pair of lungs, a photo of a man breathing cigarette smoke out of a tracheotomy hole in his neck, and a cartoon image of a premature baby in an incubator.

The Smoking Prevention Act raises two related, but distinct, First Amendment issues. The first relates to the government’s power to regulate a corporation’s commercial speech. Commercial speech—defined broadly as communication whose primarily purpose is to propose or promote a market transaction—does receive First Amendment protection, albeit of a less vigorous form than that safeguarding “core” political or personal speech rights. Such speech receives protection not because of its expressive function or because it furthers democratic self-government directly, but primarily because the public has an interest in receiving plentiful and accurate information. Though much-criticized, the Supreme Court’s Central Hudson standard remains the general framework for commercial speech: when regulating speech that is not untruthful and proposes legal activity, the government must demonstrate that its restrictions on the speech are tailored to advance directly a “substantial” government interest. Ten years ago in Lorillard Tobacco Co. v. Reilly, the Supreme Court applied the Central Hudson standard to a Massachusetts effort to regulate tobacco advertising; Justice O’Connor’s decision was notable for finally giving some shape to the “narrow tailoring” requirement. In particular, the Court found that a ban on billboard advertisements within 1000 feet of a school, when applied to dense parts of Boston and other cities, amounted almost to a total ban on that type of advertising—a result which the First Amendment could not countenance, no matter the strength of the government’s interest at stake.

The second key question presented by the Act and subsequent FDA Rule is the extent to which the government can compel tobacco companies to use their own property to engage in anti-tobacco speech. As a general matter, of course, the right to free speech includes a right against being compelled to speak; as the Court announced in its landmark decision in Wooley v. Maynard, “the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.” In the commercial setting, however, the Court has long acknowledged that the government may compel private speech in some situations in order to further the public’s interest in dissemination of accurate information. In the leading Supreme Court case on the issue, Zauderer v. Office of Disciplinary Counsel, the Court noted that “because the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides,” a speaker’s interest “in not providing any particular factual information in his advertising is minimal.” The court thus held that when the government requires disclosure of “purely factual and uncontroversial information” in advertising, such a requirement does not trigger the normally strict scrutiny which would apply to “compelled speech” otherwise. In Ibanez v. Florida Dept. of Business and Professional Regulation, the Court further held that the government must substantiate its claim that a concrete public interest is served by a disclosure requirement—it must show a “harm that is potentially real, not purely hypothetical.”

Unsurprisingly, the major tobacco companies immediately challenged the 2009 Act on First Amendment and other grounds. The first federal court decision on the First Amendment question was issued by the Western District of Kentucky in January 2010, after Congress had acted but before the FDA had implemented its Rule selecting the warning images to be used. In a complex ruling, Judge Joseph McKinley preliminarily upheld the majority of the legislation, finding only portions of the restrictions on color and graphic advertising to be unconstitutional under the “narrow tailoring” prong of Central Hudson. Most importantly, McKinley found that the new warning requirements did not constitute impermissible “compelled speech.” In the first place, the court rejected the tobacco companies’ argument, relying on Ibanez, that the government could not show a real harm since “the public already appreciates the health risks associated with using tobacco products.” Pointing to a series of series of studies from the Surgeon General, Institute of Medicine, and WHO which showed that consumers often ignored existing warnings, the court agreed with the government that public ignorance remained a real problem meriting further disclaimer requirements.

Second, the court rejected the plaintiffs’ argument, based upon 7th Circuit precedent in Entertainment Software Ass’n v. Blagojevich,that the Act’s requirement that warning graphics take up a whole half of all packages was “unduly burdensome.” In Entertainment Software, the 7th Circuit in 2006 had held that an Illinois law requiring a large “18+” sticker to be placed on sexually explicit video games was unduly burdensome compelled speech under a strict scrutiny standard because the government had made no demonstration that a smaller, less obtrusive sticker wouldn’t have achieved the same effect. In the Kentucky tobacco decision, however, Judge McKinley rejected the parallel with Entertainment Software, noting that here the government had shown a need for the warnings to be large and highly visible, mostly by pointing to a WHO report recommending that warnings take up at least half of packaging to be effective.

Finally and most importantly, McKinley held that the Act’s warning requirements qualified as “purely factual and uncontroversial information” and thus did not merit strict scrutiny. The government’s central message as delivered through the text warnings—i.e. “smoking is dangerous”—is “objective and has not been controversial for many decades.” Indeed, the first Surgeon General’s warnings on cigarette packages were mandated (albeit in much less obtrusive form) in 1966.

That decision, however, was issued in early 2010, before the FDA had either proposed its roster of 36 possible graphic warning images or selected the final nine. Judge McKinley admitted that complete judgment on the cumulative effect of the government’s eventual choice of images was not yet possible, but he forecast that the visual content of the images would not materially affect his ruling: “The Court does not believe that the addition of a graphic image will alter the substance of such messages, at least as a general rule.”

In his D.C. District ruling this week, Judge Leon disagreed and found the Kentucky District ruling premature. In his appraisal, the impact of the graphic images pushed the disclaimer requirements out of the Zauderer zone reserved for objective, uncontroversial statements and into the realm of compelled speech requiring strict scrutiny. Judge Leon gave great weight to the fact that several of the images were cartoons, and that the photos were obviously manipulated or enhanced; both factors indicated the FDA’s desire not simply to broadcast an objective truth, but to hammer home a stronger message. Moreover, the intentionally graphic—in his view, gratuitously graphic—nature of the images made their implicit message hardly “uncontroversial.” Depictions of premature babies and cadavers, though they undoubtedly canvas a portion of the possible results of smoking, do not have the rigorously rational impact of a statement of statistical risks or possible consequences. In Leon’s judgment, the images reflect a government goal which—while almost certainly legitimate in its own right—is fundamentally broader than the narrow government interest permissible under the Zauderer standard: “It is abundantly clear from viewing these images that the emotional response they were crafted to induce is calculated to provoke the viewer to quit, or never to start, smoking: an objective wholly apart from disseminating purely factual  and uncontroversial information.”

Having therefore found that the warning requirements would have to survive strict scrutiny in order to pass constitutional muster, Leon next held that the government failed to demonstrate necessary “narrow tailoring” to achieve a “compelling government interest.” In the first place, Leon found that the government’s asserted purpose in enacting the legislation was muddled; it insisted in briefing the court that its goal was primarily informational (probably in hopes of satisfying the Zauderer standard), while the broader history of the legislation and common sense dictated that the government’s real goal was to reduce smoking for public health reasons. Regardless of what precisely the FDA’s interest was, Leon found that the government had done a poor job of demonstrating any kind of narrow tailoring. It had failed to refute plaintiffs’ claims that other, less blatantly emotive, types of graphics would have achieved the same ends. “It is quite clear that the Rule’s graphic-image requirements in no way suggest the slightest attempt to narrowly tailor the display or presentation of the graphic images Congress mandated.” Since he had thus found the tobacco companies likely to prevail on the merits of their First Amendment claim, and since denials of First Amendment rights are “per se irreparable” harm, Judge Leon enjoined the enforcement of the FDA Rule.

From a public policy perspective, the DC District ruling represents a setback. Congress’s broad goal of increasing public awareness of the hazards of smoking and thereby inducing smokers to quit—even through employment of shocking imagery, if necessary—is widely shared, at least outside of the Carolinas. At the very least, the ruling stalls implementation of the program and could very well lead to a Supreme Court decision which would mandate scrapping the Rule entirely and starting over. The White House’s response, not surprisingly, was bitterly negative: “Tobacco companies shouldn’t be standing in the way of common-sense measures that will help prevent children from smoking. We are confident big tobacco’s attempt to stop these warnings from going forward will ultimately fail.”

There are grounds for the administration’s implicit challenge to the legal objectivity of Judge Leon’s ruling. A conservative appointed to the federal bench by George W. Bush, Leon has a history of ruling on behalf of tobacco defendants; just last year, he ruled against the FDA’s efforts to regulate “e-cigarettes” under a stricter statutory standard. Nor is the ruling immune from criticism on more formal grounds. The court’s conclusion that the warning requirements failed to satisfy strict scrutiny is less than overwhelmingly convincing, especially given courts’ long history of accepting the legitimacy and urgency of curbing the public health dangers of smoking as a government interest. In particular, the argument that other forms of graphical communication of an anti-smoking message such as a numerical chart would satisfy a properly formulated federal interest. If the United States in future cases is able to make a stronger case that these graphic warnings—as opposed to less strident, less emotive imagery—are necessary to make a real dent in cigarette usage, it is not difficult to imagine legal victories even under strict scrutiny.

Where the D.C. District ruling has value, whatever its other deficiencies, is in reaffirming that compelled speech as a regulatory strategy should be approached with caution. Leon was probably right that shoehorning these warning labels into the Zauderer category of “factual and uncontroversial” information is an impermissible stretch. It is one thing to bar tobacco companies from making misleading claims, or to severely curtail their advertising efforts, especially towards children—provisions of the 2009 Act aiming to do so have thus far rightly survived legal challenge. It is another thing entirely, however, to force even the most disfavored of companies to devote large portions of their own product to visceral, graphic “billboards” directly contravening their own commercial purposes.

In its 1986 decision in Posadas de Puerto Rico Associates v. Tourism Co., the Supreme Court appeared to embrace the dictum of Justice Rehnquist that “the greater includes the lesser”; that is, that the government’s power to regulate or even ban a type of behavior should necessarily entail a “lesser” power to regulate speech relating to that behavior. For instance, if a state is entitled to ban casino gambling entirely, it should be entitled to enact restrictions on commercial speech relating to casino gambling that would otherwise unconstitutionally infringe on speech rights. The Court has since abandoned this approach, and rightly so. If, as most of us believe, the tobacco industry represents a uniquely pernicious threat to national health, a regulatory regime substantially similar to the 2009 Act and subsequent FDA Rule should survive scrutiny as measures necessary to achieve the government’s compelling interest in fighting that threat. In doing so, however, the government and courts should confront the undoubted constitutional significance of such forced speech; strict scrutiny is an appropriate vehicle to ensure that the uniqueness and gravity of the threat from tobacco is commensurate with the extraordinary nature of the speech restrictions placed on tobacco companies.

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